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THE JEWS AND THE ENGLISH LAW 203
THE JEWS AND THE ENGLISH LAW.
(Continued from Vol. XVI, jp. 649.)
VII.
At the time of the Restoration there were some thirty-
families of Jews in England 1 , and these naturally awaited
with expectation the promise of the king, given through
General Middleton, " to abate that rigour of the law which
was against them," and welcomed the declaration of a
Liberty to tender Consciences which had been made at
Breda. But they had many enemies to reckon with —
religious fanatics at a time when no one was thought
religious unless fanatical, and trade rivals who, thinking
that every transaction of the newly-settled foreign mer-
chants was a loss to themselves, looked with a jealous
eye on the large and increasing foreign and colonial trade
of the Jews, especially that with the recently-acquired
colonies in the West Indies. Accordingly it creates no
surprise to find that a number of petitions were presented
to the king and the Privy Council praying that the laws
against the Jews should be enforced, and that, if necessary,
new ones should be enacted. At the meeting of the Privy
Council on November 30 such a petition from Sir William
Courtney and others was read, and it is plain from the
Council's minutes that several other petitions had also
been received. The petition of Sir William Courtney is
probably the document preserved in the State Papers
under the title " Remonstrance concerning the Jews," and
dated November, 1660. It recites, apparently taking
Prynne's Demurrer as a guide, the mischief said to have
1 See the Da Costa lists published in Wolf's Jewry of the Restoration, p. 4.
204 THE JEWISH QUARTERLY REVIEW
been done by the Jews in former times and their banish-
ment under Edward I, and how they have " by little and
little and by degrees crept and stolen into England again,
and together, some as Jewes aliens and others as English,
are become of late exceeding numerous, and how they
became so is conceived to be by the means of the late
Usurper, who most apparently did protect and countenance
them in their affairs and actions," and suggests the issue
of a commission to inquire into their state, the imposition
of heavy taxes, seizure of their property, and their banish-
ment for residing here without a licence from the crown 1 .
The Council having heard this petition read resolved that
it, together with others on the same subject, should be
taken into consideration again on December 7. On that
day there were read at the Council a petition of the
merchants and tradesmen of the City of London for the
expulsion of the Jews, and also a petition of Maria Fer-
nandez Carvajal (widow of Antonio Fernandez Carvajal
already mentioned, who had died in November, 1659) and
other merchants, Jews by birth, for his majesty's protection
to continue and reside in his dominions. The latter petition
has unfortunately been lost; the former is probably the
petition of the Lord Mayor and Aldermen preserved in
the Guildhall archives ; it requested the king " to cause the
former laws made against the Jews to be put in execution,
and to recommend to the Two Houses of Parliament to
enact such new ones for the expulsion of all professed
Jews out of your Majesty's dominions, and to bar the door
after them with such provisions and penalties as in your
Majesty's wisdom shall be found most agreeable to the
safety of Religion, the Honour of your Majesty, and the
good and welfare of your subjects V The Council, judging
the business of very great importance, referred all the
petitions to the consideration of Parliament, desiring advice
therein, and ordered them to be delivered to a member of
1 S. P. Dom. Car. II, vol. XXI, p. 140 ; Calendar, 1660, p. 366.
a Bemembrancia, vol. IX, p. 44.
THE JEWS AND THE ENGLISH LAW 205
the House of Commons to be accordingly presented to the
Parliament 1 . Though the Privy Council did not itself
come to any decisive conclusion on the subject, it seems
that the intention was to uphold the king's promise and
not to molest the Jews, for on December 17 Mr. Hollis,
no doubt under orders from the Council, presented the
above-recited order to the House of Commons as specially
recommended to them for their advice therein, touching
Protection for the Jews. The House thereupon decided to
take the business into consideration the next morning 2 .
The next morning, however, the matter seems to have been
shelved, for there is no entry in the journal of anything
having been done, and a few days afterwards (Dec. 24)
Parliament was dissolved without ever having given their
advice on the Jewish problem as they had been requested
by the Council. From the general temper of the House
of Commons on religious questions during this reign it is
clear that no relaxation of the law was to be effected by
legislation in favour of the Jews, and the subject was not
again brought forward in Parliament for a period of more
than ten years. The position of the Jews, though unsatis-
factory, was by no means intolerable; the laws against
Recusants were not very strictly enforced against them,
and their place of worship, if they had already one, was
not known, and they therefore escaped all proceedings for
taking part in illegal forms of public worship. On the
other hand, the new Navigation Act had securely closed all
the colonies and plantations against foreign merchants and
factors, but this obstacle was surmounted by applying for
and in many cases obtaining letters of denization from the
king 11 . As early as the year 1662 they were emboldened
1 Privy Council Register, Charles II, vol. II, pp. 57, 67.
2 Com. Journal, vol. Ill, p. 209.
s The Navigation Act is 12 Car. II, cap. 18. See sec. 2, which, being
passed by the Convention Parliament, was expressly confirmed by the
following Parliament. See 13 Car. II, cap. 14. Mr. Webb, in an appen-
dix to the Question, &c, gives a list of 105 Jews who received letters of
denization in this and the following reign, and this list is not exhaustive.
206 THE JEWISH QUAETERLY REVIEW
to erect a synagogue. There is the doubtful reference to a
synagogue in The Great Trapanner of England Discovered,
published in 1660, which has already been referred to; but
in a letter dated April 22, 1662, and written by Jo. Green-
halgh to his worthy friend Thomas Crompton, minister of
Astley chapel, we have the description of a visit to the
Jews' synagogue and the form of worship held there. It
is plain that the synagogue was a separate building formed
no doubt out of a private house and arranged in very much
the same manner as synagogues are at the present day, the
service also being very similar, lasting some three hours
and conducted wholly in Hebrew. It was necessary to
observe the strictest secrecy, nor was any one admitted to
the building, which was in " a private corner of the city," and
had three doors, one beyond another, except very privately.
Mr. Greenhalgh himself had some difficulty in going to it.
He had an idea that the Jewish merchants in the city must
have some place of meeting together for divine worship,
and was curious to see it. " Whereupon as occasion offered
me to converse with any that were likely to inform me,
I enquired hereof, but could not of a long time hear or
learn whether or where any such thing was ; " but, having
taken to the study of Hebrew, he obtained as a teacher a
learned rabbi named Samuel Levi, who gave him a ticket
of admittance to the synagogue. We may judge the size
of the congregation by the writer's statement that in the
synagogue he counted "about or above a hundred right
Jews and one proselite amongst them 1 ." It soon became
no longer necessary to maintain this strict secrecy. In
There is a curious petition for naturalization of about this date (1661) of
Jacob Joshua Bueno Henriques among the State Papers Colonial, vol. XV,
No. 74. He says he had heard of a gold mine in Jamaica, and desired per-
mission to go there and develop it, giving the king ten per cent. He also
asks for naturalization for himself and his brothers Joseph and Moses, and
that they may follow their own laws and have synagogues. (See Calendar,
S. P. Colonial, 1661-8, p. 48, and Jews in the British West Indies, by Dr. Frieden-
wald : pub. American Jewish Hist. Soc, No. 5, p. 45 seq.)
1 Ellis's Original Letters, and series, vol. IV, Letter cccix, pp. 3 -2a.
THE JEWS AND THE ENGLISH LAW 207
the absence of any documentary evidence it is not safe to
assume that a special dispensation was given by the king
to the Jews by reason of that dispensing power which he
conceived to be inherent in him, but it may well have been
given, and if not it is most reasonable to suppose that
reliance was placed on the king's declaration to all his
loving subjects, which, as before stated, was published on
December 26, 1662. At any rate it is quite certain that
the worship of the synagogue, which had hitherto been
conducted with the greatest privacy, was shortly after this
time no longer concealed, but open to the public ; and for
a time at any rate without any evil consequences to the
worshippers. On October 14, 1663, Samuel Pepys and his
wife and his friend Mr. Rawlinson paid a visit to the
synagogue after dinner, where they were present at what
was evidently the afternoon service for the rejoicing of
the law. There was no difficulty as to admission, and no
attempt at concealment. The clerk of the acts of the
navy remarks upon the disorder, want of attention and
confusion in the service, and observes that he could not
" have imagined there had been any religion in the whole
world so absurdly performed as this 1 ." It was in the
course of this year that the hitherto isolated Jewish
families formed themselves into a community. Henceforth
regular records were kept; the synagogue, in addition to
being made public, was renovated and improved, and in
1664 a lease was taken; in September, 1663 the Finta, or
contributions of the individual members of the synagogue,
was fixed, and in the following November the Ascamoth,
1 Diary of Samuel Pepys, Oct. 14, 1663, Wheatley's edition, vol. Ill,
p. 303. This description of a visit to the Synagogue gives an impression
•which was shared by other Christian obsarvers ; see the autobiography of
Henry Newcome, M.A., a.d. 1686, "June 26. We went to the Jews' Syna-
gogue. I could not have believed, but that I saw it, such a strange
worship, so modish and foppish ; and the people not much serious
in it as it is. And I was affected to think, that many likely men of
understanding should be without Christ, and live in the denial of him."
Chetham Society's Publications, vol. XXVII, p. 262.
208 THE JEWISH QUARTERLY REVIEW
or code of laws to govern the newly-founded community,
was drawn up; it was published in April, 1664, and in
the same month a Haham, or Chief Rabbi, was appointed ;
the whole organization being completed by April 19,
1664*. It was not likely that the public exercise of a
strange religion should long remain unnoticed, and the
passing of the Conventicle Act, which expressly declared
that the Elizabethan legislation against Recusants was still
in force and ought to be put into execution, invited an
attack upon the Jews. It was not long delayed. The
Conventicle Act came into force on July 1, 1664. And
immediately afterwards we hear of a Mr. Rycaut molesting
the heads of the congregation, suggesting that they were
liable to all sorts of penalties and forfeitures, and what
was worse, the Earl of Berkshire, the second son of that
Earl of Suffolk in fear of whom the Jews had fled the
country in the reign of James I, who held a high position
at court, being a gentleman of the bedchamber and privy
councillor 2 , intervened, saying he was verbally authorized
by the king to protect them, but threatening that unless
they came to a speedy agreement with him, he would
himself prosecute them and procure the seizure of their
estates. In these circumstances the wardens of the syna-
gogue, the first that had been yet appointed, took the only
course open to them, and petitioned the throne direct.
With great wisdom they omit all mention of the religious
question and the infringement of the newly-enacted law,
but say they know of no law to hinder their residence in
the kingdom, and ask to be allowed to remain under the
protection of the law until his majesty should think fit to
order them to depart, and promise to be loyal and obedient
subjects of the king. The petition was referred to the
Privy Council on August 22, 1664. A most generous
answer was returned. The king declared that he had
1 (Master's History of the Ancient Synagogue, pp. 7, 9-11, 17 ; Wolf's Jewry of
the Restoration, pp. 13-15.
2 See Cockayne's Peerage, vol. I, p. 343.
THE JEWS AND THE ENGLISH LAW 209
given no orders for molesting or disquieting the petitioners,
and that they might " promise themselves the effects of the
same favour as formerly they had had, so long as they
demeaned themselves peaceably and quietly with due obe-
dience to his Majesty's Laws, and without scandal to his
government 1 ." The concession was of great importance;
it was a formal recognition of a system of public worship
which had been established for more than a year in open
defiance of the Elizabethan statutes enforcing uniformity,
and was given at the very time when Parliament had
declared that those statutes should be carried out, and
had even added to their severity by the enactment of the
Conventicle Act. The king's claim to grant dispensations
from penal laws had not yet been questioned in Parliament,
and this particular dispensation granting the Jews the
same favours they formerly had had, and by implication
including the right of public worship which they had of
late openly exercised, was never disputed in the legislature.
Even assuming an express dispensation had been given to
the Jews after Christmas, 166a, the new declaration was
necessary to enable them to escape the severe penalties of
the new Act which had just come into force.
For some years the synagogue was kept open and the
services regularly held without molestation. On February 6,
167^, the House of Commons thought fit to take this matter
into their consideration. There was a scheme on foot to
prevent the growth of Roman Catholicism, and in case
legislation should be introduced, it was thought a good
opportunity to aim a blow at Judaism also. It was ac-
cordingly ordered "that a Committee be appointed to
inquire into the causes of the growth of Popery ; to pre-
pare and bring in a bill to prevent it, and also to inquire
touching the number of the Jews and their Synagogues,
and upon what terms they are permitted to have their
residence here, and report it with their opinions to the
1 S. P. Dom. Car. II, ent. Book 18, pp. 78-9 ; Calendar, 1663-4, p. 672.
VOL. XVII. P
210 THE JEWISH QUARTERLY REVIEW
House 1 ." Either from want of time or knowledge, or
because the subject was not thought of sufficient impor-
tance, the part of the reference relating to the Jews does
not seem to have been proceeded with; the Committee's
report, which was presented to the House on February 17,
dealt only with the causes of the increase of Popery, and
it was resolved that an address requesting a proclamation
for the banishment of priests and Jesuits, and the enforce-
ment of the laws against Recusants, should be drawn up
and presented to the king ; whose answer to this address
excepting those who served his father and himself faithfully
in the late wars has been already mentioned.
For the time being, then, the Jews were left undisturbed ;
nor were they concerned with the publication of the Declara-
tion of Indulgence in the spring of 167a, for, for nearly
nine years before that time they had openly exercised the
right of public worship which was conferred by that in-
strument on all Nonconformists except Papists. But the
cancelling of the declaration in the following year gave
occasion for a new attack upon the synagogue ; the organ-
izers of it no doubt argued that the withdrawal of the
general indulgence of itself annulled the particular dis-
pensation granted to the Jews, which, though previously
acted upon, was evidenced and confirmed by the king's
answer to their petition given on August 22, 1664. Ac-
cordingly, at the winter quarter sessions of 1673 a ^ the
Guildhall, the leaders of the Jewish community were in-
dicted of a riot for meeting together for the exercise of
their religion in Duke's Place, and a true bill was found
against them by the grand jury. The Jews again peti-
tioned the king, referring to the favourable reply they
had received in 1664; and, as was seen in the first of these
articles, on February 11, 167 f, an order was made by the
King in Council "that Mr. Attorney General do stop all
proceedings at law against the Petitioners who have been
1 Com. Jour., vol. IX, p. 198.
THE JEWS AND THE ENGLISH LAW 211
indicted as aforesaid and do provide they may receive no
further trouble in this behalf 1 ."
The method by which the Attorney General is able to
stop proceedings in a criminal trial is by entering a nolle
prostqui — a course which before these times was not un-
usual in the case of informations or prosecutions commenced
by a representative of the crown. About this very time'
the system was extended to indictments or prosecutions
commenced by any member of the public without the
necessity of any intervention or permission from the re-
presentative of the crown as a convenient way of exercising
that dispensing power which the king thought inherent in
his office a . It is somewhat remarkable that though Par-
liament was sitting at the time, and the king's power of
suspending penal statutes in matters ecclesiastical had
recently been questioned, no protest against this particular
dispensation in favour of the Jews was made in either
House; this may, however, be accounted for by the fact
that Parliament was prorogued within a fortnight of the
issue of the Order in Council, which may not have been
generally known till some time afterwards. The measure
of favour now shown the Jews was a distinct advance
upon the proceedings of 1664. In the earlier year a vague
promise of protection had been given upon condition that
the laws of the land were duly obeyed. The formal Order
in Council made ten years later effectually saved the young
community from the consequences of undoubted infringe-
ments of the laws then in existence. The king could not
make the celebration of an unauthorized religious service
legal, but he could and did, by the exercise of his dispensing
1 Hag., Cons. Cas., vol. I, Appendix, p. 2.
5 In Goddard v. Smith (1764), 8 Mod. Rep., p. 264, Chief Justice Holt
says that it began first to be practised in the latter half of King Charles
the Second's reign, but that on informations it had been frequently done,
and he ordered precedents to be searched if any were in Mr. Attorney
Palmer's or Nottingham's time. And on another day he declared that in
all King Charles the First's time there is no precedent of a nolle prosequi
on an indictment.
P a
212 THE JEWISH QUARTERLY REVIEW
power in this formal way, render those who took part in it
immune from the penalties of the law which they were
habitually violating. Indeed, shortly after this event, the
leaders of the community thought themselves so far secure
that during this year they took the lease of a house in
Creechurch Lane for a term of twenty-five years, and
established there a larger and more commodious syna-
gogue 1 . Nor was their confidence without justification,
for no further attack was made upon them during the
remainder of the reign.
It is well to pause here and glance at the progress
made since the king's return. The resettlement, towards
which, in spite of several sustained but unsuccessful at-
tempts, no real advance had actually been made during
the Commonwealth, was now actually effected, and, if the
policy of Charles were confirmed by his successors, legally
complete. At the time of the Restoration, Jews, though
they might enter the country as freely as other aliens,
were yet in no better legal position than they had been
in the days of James I ; they were subject to heavy fines
if they did not regularly attend the Christian services of
their neighbours, and were under still severer penalties
debarred from setting up a synagogue of their own. It
was impossible to establish a settled community or even
to meet together for Jewish religious purposes except
under the cover of the strictest secrecy. Those who were
here are rightly called by Mr. Wolf Crypto-Jews, for they
were unable to openly profess their allegiance to Judaism.
The king, who in his exile had promised to abate the rigour
1 Gaster's History of the Ancient Synagogue, p. 7. Creechurch Lane is in
close proximity to Duke's Place, but the extreme accuracy required in an
indictment shows that in 1673 the house of prayer was at Duke's Place
itself. Neither Pepys nor G-reenhalgh indicates the locality of the syna-
gogue, but it was probably the same house in Duke's Place which was
still used in 1673. In the old synagogue in Duke's Place, according to
Greenhalgh, the women worshipped in an inner room ; in the newer
synagogue in Creechurch Lane there was a separate gallery and entrance
for ladies.
THE JEWS AND THE ENGLISH LAW 213
of the law that was against them, proved as good as his
word. At the very beginning of his actual reign we have
the earliest reliable evidence of a meeting-place for public
worship according to Jewish rites. At first these services,
though open to all Jews, were carefully concealed from the
general public ; yet after a lapse of three years it was pos-
sible to hold them openly; and the criminal proceedings
which were threatened, or actually took place in conse-
quence, were prevented or rendered abortive by the inter-
vention of the king, and by the year 1674 the community,
already firmly established, was able to obtain a long lease
of a house, and especially reconstruct it for the purposes
of a synagogue. No less than seventy members of the new
congregation were granted during the reign letters of deni-
zation, and thus acquired the rights of English citizenship.
Questions concerning the customs and rights of Jews, as
would necessarily happen as soon as an actual settlement
took place, now for the first time were discussed and de-
cided in the courts of law — for instance, it was held that
a Jew should be sworn on the Old Testament in legal pro-
ceedings whether at common law or in chancery ; that it
was right to alter the venue in a case where a Jew would
be a necessary witness so that it should not be heard on
Saturday, the Jewish Sabbath, and that a Jew might main-
tain an action in this country unless expressly prohibited
by the king from carrying on trade here 1 . Under the
aegis of the king, and protected by the exercise of his
dispensing power, a Jewish community had been practi-
cally established, requiring only the like recognition and
protection from succeeding monarchs to make itself per-
manently and legally secure.
On February 6, i68£, Charles II died, and his brother
James was proclaimed king. The new sovereign was from
the first determined that the crushing disabilities under
1 See the cases of Robeley v. Langston (1667), a Keble, p. 314 ; and Anon.
(1683), 1 Vern., p. 263 ; Barker v. Warren (1675), a Mod., p. 271 ; and case
in Lilly's Practical Register, vol. I, p. 4 (1684).
214 THE JEWISH QUARTERLY REVIEW
which his fellow Papists laboured should no longer press
upon them, and was quite willing to give similar relief to
other Dissenters. In his speech made to the Privy Council
at the time of his proclamation as king he promised " to
preserve the government both in Church and State as it is
now by law established," and to defend and support the
Church of England. On March 5, to the great grief of
all Protestants, mass was publicly said at Whitehall 1 , but
in his speech at the opening of Parliament on May 22, the
king repeated the promise he had made to preserve the
government both in Church and State. This assurance, it
is plain, did not give universal satisfaction, for, fashionable
as it was in those early days of his reign to profess un-
bounded confidence in the king, there was still some mis-
giving and jealousy of the royal power in religious matters
which was bound to find expression. On May 27, the
grand committee for religion reported that they had agreed
upon two resolutions, of which the second was " That the
house be moved to make an humble Address to his Majesty
to publish his royal Proclamation for putting the laws in
execution against all Dissenters whatsoever from the
Church of England." This resolution gave great offence
at court, and the court party in the House managed to
defeat it by moving the previous question, which was
carried, and the following motion was then unanimously
adopted: "That this house doth acquiesce, entirely rely,
and rest wholly satisfied in his majesty's gracious word and
repeated Declaration, to support and defend the Religion
of the Church of England, as it is now by law established ;
which is dearer to us than our lives 2 ." Though no pro-
clamation was issued, an attempt was a short time after-
wards made to enforce the penal laws against the Jews ;
for one Thomas Beaumont issued process under the statute
made in the 23rd year of Queen Elizabeth, which inflicted
1 Evelyn's Memoirs, vol. I, p. 551.
* Commons Journals, vol. IX, p. 731 ; Pari. Hist., vol. IV, p. 1357.
THE JEWS AND THE ENGLISH LAW 215
a penalty of £%o a month for non-attendance at church,
against no fewer than forty-eight Jews, of whom thirty-seven
were arrested " as they were following their occasions on the
Royal Exchange " ; whereupon Joseph Henriques, Abraham
Delivera, and Aaron Pacheco, the overseersof the Jewish syna-
gogue, presented a petition to the King in Council praying
" his Majesty to permit and suffer them as heretofore to have
the free exercise of their religion, during their good be-
haviour towards his Majesty's Government." King James,
following his brother's example by a formal Order in
Council, exercised his dispensing power in favour of the
Jews by ordering the Attorney-General to stop all the
proceedings against them ; " His Majesty's intention being "
(so the order runs), "that they should not be troubled Upon
this account, but quietly enjoy the free exercise of their
religion, whilst they behave themselves dutifully and
obediently to his government 1 ."
This Order in Council was made on November 13, 1685,
at the very time when Parliament, newly reassembled after
the suppression of Monmouth's rebellion, was questioning
the power of the king to retain in his service Roman
Catholic officers who had served against the rebels by
granting them dispensations from the Test Act. In his
speech to both Houses, at the resumption of the session on
November 9, James openly expressed his intention of con-
tinuing them in their employment, saying : " And I will deal
plainly with you, that after having had the benefit of their
service in such time of need and danger, I will neither ex-
pose them to disgrace, nor myself to want of them, if there
should be another rebellion to make them necessary for
me 2 ." On November 14 the House of Commons resolved
to present an address dealing with this matter which, when
finally drawn up and adopted, ran as follows : " We further
crave leave to acquaint your Majesty that we have with all
duty and readiness taken into consideration your Majesty's
1 Hag., Cons. Gas., Appendix, p. 3.
2 Commons Journals, vol. IX., p. 756 ; Lords Journals, vol. XIV, p. 73.
2l6 THE JEWISH QUARTERLY REVIEW
gracious speech to us, and as to that part of it relating to
the officers in the Army not qualified for their employments
according to an Act of Parliament made in the twenty -fifth
year of the reign of your Majesty's Royal Brother of blessed
memory, intituled an Act for preventing dangers which may
happen from Popish Recusants, we do out of our bounden
duty humbly represent unto your Majesty, that these officers
cannot by law be capable of their employments ; and that
the incapacities they bring upon themselves thereby can
no ways be taken off but by an Act of Parliament : There-
fore out of that great deference and duty we owe unto your
Majesty who has been graciously pleased to take of their
services to you, we are preparing a Bill to pass both Houses
for your royal assent to indemnify them for the penalties
they have now incurred. And because the continuance of
them in their employments may be taken to be a dispensing
with that Law, without Act of Parliament (the consequence
of which is of greatest concern to the rights of all your
Majesty's dutiful and loyal subjects and to all the laws
made for the security of their religion) we therefore, the
knights, citizens, and burgesses of your Majesty's House of
Commons, do most humbly beseech your Majesty, that you
would be graciously pleased to give such directions therein,
that no apprehensions or jealousies may remain in the hearts
of your Majesty's good and faithful subjects." A motion
was made that the concurrence of the Lords be desired to
the said Address, but was rejected by 21a votes to 138.
And so, as had happened in the year 1673, the denial of
the dispensing power of the Crown was embodied in a re-
solution of the Lower House only. The Lords, however,
did not desire to be left behind in this matter, for on
Thursday, November 19, they resolved " that Monday next
be appointed for reading and considering His Majesty's
speech." But in the meantime the king, who had been
highly incensed with the Commons Address when presented
to him, and had expressed dissatisfaction and surprise at
their want of confidence in him, prorogued Parliament,
THE JEWS AND THE ENGLISH LAW 21 7
which never met again for the transaction of business
during his short reign 1 .
The struggle was now transferred from the Parliament
House to the Law Courts. A decision that the king had
power to dispense with the penalties inflicted by the Test
Act was obtained 2 , and James proceeded to make the utmost
use of this judgment in his favour, but not content with
granting dispensations wholesale, at length in April,
1687, he published a Declaration for liberty of conscience,
suspending all the penal laws, and remitting all penalties
incurred under them ; allowing the free exercise of every
form of religion, and announcing that the oaths of
supremacy and allegiance, and the recently enacted tests,
should no longer be required to be taken or subscribed by
any person, " and further declaring that this royal pardon
and indemnity should be as good and effectual to all intents
and purposes as if every individual person had been therein
particularly named or had particular pardons under the
great seal." A year afterwards this Declaration of Indul-
gence was reissued, and ordered to be read in all churches,
but now the storm, which had long been brewing, at length
burst, and James was driven from his throne.
1 Commons Journals, vol. IX, pp. 758, 759, 761 ; Lords Journals, vol. XIV, p. 88.
a The case is Godden v. Hales, which was decided in Easter term, 1686.
The action was brought against Sir Edward Hales to recover a penalty
of £500 incurred by holding the office of colonel in the army without
having taken the oath required by the Test Act. The defendant, in answer,
pleaded a dispensation from the Crown. Sir Edward Herbert, Lord Chief
Justice of the Common Pleas, after taking time to consult the other
judges, declared that he and all the other judges (except Street and
Powell, who doubted) were of opinion (1) that the kings of England are
sovereign princes ; (2) that the laws are the king's laws ; (3) therefore it
is an inseparable power in the kings of England to dispense with penal
laws in particular cases, and upon particular necessary reasons ; (4) that
of those reasons and those necessities the king himself is sole judge ;
(5) that this is not a trust invested in or granted to the king, but the
ancient remains of the sovereign power and prerogative of the kings of
England, which never yet was taken from them nor can be. And there-
fore, such a dispensation appearing upon record, judgment ought to be
given for the defendant. See 2 Shower, p. 475 ; XI St. Tr., p. 1 166 sea..
2l8 THE JEWISH QUAETEELY EEVIEW
Until after the decision of Godden v. Hales in Easter
term, 1686, the king had probably not gone beyond the
law, though he had undoubtedly stretched his prerogative
to its furthest limits, but his proceedings after that time
are rightly regarded as wholly illegal. A special dispensa-
tion to a particular person or persons is very different from
a general indemnity to all who might violate and incur
penalties under the penal laws. However much we may
at the present time approve of the wording and the sub-
stance of the declarations of indulgence, we cannot forget
that if toleration was to be established, it could be secured
only by an Act of the legislature, and not by the king
alone usurping the authority of Parliament. James's hopes
of success had lain in uniting all the dissenting sects
against the Established Church, but the great mass of
Dissenters were as vehement in their opposition as church-
men, partly because they regarded the indulgence offered
them as illegal and unconstitutional, and a direct infringe-
ment of the liberties of the people and their right of
legislation, and partly because they feared that the real
object of placing the members of the different sects on the
same footing as members of the Church of England, was,
after destroying the supremacy of the Established Church,
to afterwards gradually transfer it to the adherents of the
Church of Rome. The Jews did not avail themselves of
the Declaration of Indulgence, but for different reasons
from their nonconformist brethren. They were satisfied
with the dispensation granted them by Charles II, and
confirmed by James II in November, 1685, for it enabled
them to escape the penalties of recusancy, and also to hold
public worship in accordance with the rites of their religion ;
nor had they any desire to take any part in the political
life of the country, which under the Declaration of
Indulgence they might have done. For not only were
they for the most part aliens and wholly absorbed in
commercial enterprises, but one of the ascamoth or laws
of the synagogue strictly forbade its members from
THE JEWS AND THE ENGLISH LAW 2ig
taking any part in politics * — a very wise provision in the
then condition of the newly-organized community. The
position of the Jews therefore remained throughout
the reign the same as it had been under Charles II, but
lapse of time and the confirmation of the dispensation
given by Charles and his successor rendered their settle-
ment more secure, and their community was rapidly
increasing, and still enjoying the royal favour, as is proved
by the fact that thirty-four of its members were granted
letters of denization by James II during his short reign.
The Revolution of 1688 did not affect the status of the
Jews. It was indeed recognized that it was necessary to
reward in some way the loyalty to the constitution of the
Dissenters, who, in spite of the indulgence offered them by
the deposed king, had joined entirely in the resistance to
the illegal attacks on the rights and privileges of the
Established Church, but it was determined that the tolera-
tion to be granted should be strictly limited. The penal
laws might be divided into two classes ; first those winch
compelled attendance at church, and punished the holding
of religious services not in conformity with the ritual laid
down in the book of common prayer, secondly those which
disabled all who did not profess the doctrines of the Church,
and join in communion with it, from sitting in Parliament,
or holding any political or municipal office or any place of
profit under the Crown. The gratitude felt by churchmen
to their nonconformist brethren for the support rendered to
the Church in her hour of need, was not strong enough
to create any desire to admit them to any share of political
power, and it was thought that sufficient generosity was
shown in granting freedom of worship to Protestant
Dissenters, and relief from the penalties incurred by
absence from church. No attempt was therefore made to
mitigate any of the laws falling under the second category,
nor were any of those belonging to the first class amended
or repealed, but, in accordance with a mode of legislation
1 Gaster, The Ancient Synagogue, p. 88.
220 THE JEWISH QUARTERLY REVIEW
which seems peculiarly dear to the English people, the
effect of disobedience was annulled by exempting Dissenters
from the penalties they would have otherwise incurred.
This was done by means of the statute (i Will. & M., cap. 18)
entitled " An Act for exempting their Majesties' protestant
subjects dissenting from the Church of England from the
penalties of certain laws," and generally known as the
Toleration Act. In spite of its high sounding title the
toleration granted was strictly limited to Protestant
Nonconformists, who might take the new oaths of allegiance
and supremacy, and subscribe a declaration against tran-
substantiation ; though Dissenters, such as Quakers, " who
scruple the taking of any oath," were allowed instead to
subscribe a declaration of fidelity to the throne, and also
a profession of their Christian belief, and it was also pro-
vided " that neither this Act nor any clause, article, or thing
herein contained, shall extend or be construed to extend to
give any ease, benefit, or advantage to any papist or popish
recusant whatsoever, or any person that shall deny in his
preaching or writing the doctrine of the Blessed Trinity, as
it is declared in the aforesaid articles of religion." Dissenters
entitled to the benefit of the Act were enabled to have
their places of worship certified, and persons who should
disturb the services held there were made liable to penalties.
At the same time it was made clear that there was no
intention to allow any relaxation of the strict observance
of the Sunday, for by section 16 "all the laws made and
provided for the frequenting of divine service on the Lord's
Day, commonly called Sunday, shall be still in force, and
executed against all persons that offend against the said
laws, except such persons come to some congregation or
assembly of religious worship, allowed or permitted by
this Act." Yet, such as it is, the Toleration Act is not
unjustly regarded as the charter of freedom of conscience
in this country, for it in practice gave all the liberty which
at the time it was intended to allow. Nonconformity was
still regarded in theory as a crime, but exceptions were
THE JEWS AND THE ENGLISH LAW 22 1
introduced, which in the course of time became so numerous
as to eat up the rule. The true effect of the Toleration
Act is well expressed by Lord Mansfield in his speech in
giving judgment in the House of Lords in the case of the
Chamberlain of London v. Evans in the year 1767 ; he says,
that in former days nonconformity was " in the eye of the
law a crime, every man being required by the canon law,
received and confirmed by statute law, to take the sacrament
in the church at least once a-year, . . . but the case is quite
altered since the Act of Toleration ; it is now no crime for
a man, who is within the description of that Act, to say he
is a Dissenter ; nor is it any crime for him not to take the
sacrament according to the rites of the Church of England ;
nay, the crime is, if he does it contrary to the dictates of
his conscience. . . . The Toleration Act renders that which
was illegal before now legal ; the Dissenters' way of worship
is permitted and allowed by this Act; it is not only
exempted from punishment, but rendered innocent and
lawful; it is established; it is put under the protection
and is not merely under the connivance of the law. . . .
Dissenters, within the description of the Toleration Act,
are restored to a legal consideration and capacity ; and an
hundred consequences will from thence follow, which are
hot mentioned in the Act. For instance, previous to the
Toleration Act, it was unlawful to devise any legacy for
the support of dissenting congregations, or for the benefit
of dissenting ministers ; for the law knew no such assem-
blies and no such persons ; and such a devise was absolutely
void, being left to what the law called superstitious pur-
poses. But will it be said in any court in England, that
such a devise is not a good and valid one now ? " but then
he adds later, " the case of ' Atheists and Infidels ' " (among
whom Jews are included) " is out of the present question ;
they come not within the description of the Toleration
Act 1 ."
1 Cobbett's Pari. Hist., vol. XVI, pp. 313-27.
222 THE JEWISH QUARTERLY REVIEW
The benefit of the Toleration Act was extended to
Unitarians in the year 1813, and to the Koman Catholics,
who had received considerable measures of relief by
statutes passed in 1778, 1791, 1829, in the year 1832, and
finally to the Jews in the year 1846, but until the reign
of Queen Victoria there had been no legislative enactment
exempting the Jews from the penalties of the penal laws,
which were finally repealed in the years 1844 and 1846 1 .
1 In 1812 three of the most intolerant Acts passed in the reign of
Charles II, namely, the Act against Quakers, the Five Mile Act, and the
Conventicle Act, were repealed by the Places of Religious Worship Act,
1812 (52 Geo. Ill, cap. 155), which also ma'le it necessary, under a penalty
of £20, to certify and register all places for religious worship of Protestants,
at which more than twenty persons should be present.
In 1813, S3 Geo. Ill, cap. 160, admitted Unitarians to the benefit of the
Toleration Act, by repealing the last two lines of sect. 17, which exclude
any person who shall deny the doctrine of the Blessed Trinity.
The Acts relieving Roman Catholics are (1) Sir George Savile's Act
(18 Geo. Ill, cap. 60), which exempted Roman Catholics who took the
prescribed oath, expressing allegiance to King George and disclaiming
the Stuarts and the deposing power of the Pope, from many of the
disabilities and penalties imposed since the Revolution by 11 & 12
Will. Ill, cap. 4. Catholics were henceforth allowed to purchase and
inherit land, and the provisions allowing a Protestant kinsman to enter
and enjoy the estate of a Catholic heir, and imposing perpetual imprison-
ment for keeping a Roman Catholic schorl, were repealed, (a) The
Roman Catholic Relief Act, 1791 (31 Geo. Ill, cap. 32), which among
other things exempted all persons who should make a declaration pro-
fessing the Roman Catholic religion, and take the prescribed oath of
allegiance to the king and the Hanoverian succession, from all penalties
for not resorting to the parish church, and from being prosecuted for
being a Papist, or for hearing or saying mass, or taking part in any other
ceremony of the popish religion, provided that all places of worship
should be certified, and provided also " that all the laws made and
provided for the frequenting of divine service on the Lord's Day, com-
monly called Sunday, shall be still in force, and executed against all
persons who shall offend against the said laws, unless such persons shall
come to some congregation or assembly of religious worship permitted by
this Act or by the" Toleration Act, i.e. a Roman Catholic or Protestant
Nonconformist chapel. (3) 43 Geo. Ill, cap. 30, substitutes the declara-
tion and oath prescribed in the Catholic Relief Act of 1791 for the oath
prescribed in Sir George Savile's Act of 1778. (4) The Roman Catholic
Relief Act, 1829 (10 Geo. IV, cap. 7), admitted Roman Catholics to full
political rights, with certain exceptions, by exempting them from the
provisions of the Test Acts and the Corporation Act. (5) The Roman
Catholic Charities Act of 1832 (2 & 3 Will. IV, cap. 115) extended to Roman
THE JEWS AND THE ENGLISH LAW 223
No relief was formally given to enable Nonconformists
to fill municipal, political, or military offices, from which
all who did not take the Communion according to the rites
of the Church of England were excluded ; but after the
beginning of the reign of George II such offices were
practically thrown open to Protestant Dissenters by passing
annual Indemnity Acts, the first of which is 1 Geo. II,
st. 2, cap. 23, in favour of those who had omitted to qualify
themselves under the Corporation and Test Acts. At
length in the year 1828 the statute 9 Geo. IV, cap. 17, sub-
stituted a Declaration, " upon the true faith of a Christian,"
not to disturb or injure the Established Church for the
Sacramental test, thus sweeping away all the political
disabilities of Protestant Nonconformists, and in the follow-
ing year the obligation to make a Declaration against
transubstantiation was repealed, and Papists also, under
certain conditions, were admitted to full political rights by
the Roman Catholic Relief Act of 1829.
It is somewhat remarkable that, until the year 1846, no
legislative relief from the penal laws, except in so far as
some of them had been repealed in the year 181 a and the
year 1844, was granted to the Jews. — The repealing Acts
were not intended to benefit the Jews ; but were made in
favour of Protestant Dissenters and Roman Catholics re-
spectively. — Indeed the statute passed in the last-mentioned
year, which is entitled "An Act to repeal certain Penal
enactments made against Her Majesty's Roman Catholic
Subjects," expressly restricted the repeal of many of the
statutes it dealt with, to the extent to which they related
to or in any manner affected Roman Catholics. The Com-
mission for revising and consolidating the criminal law,
which was appointed in February, 1845, recommended in
its first report, published three months afterwards, that the
Catholics the benefit of the Toleration Act, by making them subject to the
same laws as Protestant Dissenters "in respect of their schools, places
for religious worship, education, and charitable purposes." (6) 7 & 8
Vict., cap. ro2, expressly repealed many of the penal enactments, so far as
they " relate to or in any manner affect Koman Catholics."
224 THE JEWISH QUARTERLY REVIEW
clauses in the Uniformity Acts by which a penalty is
inflicted for repairing to other places of worship than
churches, and also those inflicting penalties on Roman
Catholics, Dissenters, and Jews for professing, exercising,
or promoting any religion other than that of the Established
Church, and also the Laws of Recusancy, be repealed, and
further that the religious worship of the Jews be protected
in like manner as that of Roman Catholics and Dissenters.
These recommendations were carried out in the following
year by the Act to relieve Her Majesty's Subjects from
certain penalties and Disabilities in regard to Religious
opinions (9 & to Vict., cap. 59). At length, therefore, after
the lapse of more than a century and a half, the Jews were
formally, by a solemn Act of the legislature, admitted to
the benefits of the Toleration Act, and their religion was
no longer merely connived at, but was placed under the
protection of the law. During this long period the Jewish
question was frequently brought to the notice of Parlia-
ment, and the Jews had always both friends and enemies
in that assembly; but the Jewish question never became
a burning question of the day \ The enemies of the Jewish
religion, having the letter of the law in their favour, did
not feel the necessity of taking any legislative action,
though they may have deplored their inability to enforce
the penal laws against the Jews. The friends of the Jews,
on the other hand, did not care to introduce remedial
measures, which would have certainly been opposed and
possibly if not probably defeated, because in fact the Jewish
religion, though not sanctioned by Parliament, had under
the king's dispensing power, as exercised by the Orders in
Council in 1674 and 1685, all the protection that was
necessary. The synagogue was always open ; its wor-
shippers were not prosecuted, and a considerable and
1 An exception should perhaps be made of the events following the
ill-fated Naturalization Act of 1753, but even then the right of public
worship and the practical freedom from the penalties of recusancy were
never seriously brought in question.
THE JEWS AND THE ENGLISH LAW 225
increasing Jewish community gradually grew up both in
London and the principal commercial centres. Every year
the position became more secure, and premature attempts
at legislation would have only endangered it.
It cannot, however, be disputed that the Jews were
deliberately excluded from the Toleration Act, for almost
immediately after its passage their status was the subject
of discussion in the House of Commons. In order to
provide funds for the reduction of Ireland, which still held
out for the Stuart king, and the vigorous prosecution of
the war against France, it was resolved in the autumn of
1689 to raise an additional supply of two million pounds.
On November 7, the Committee of the whole House, which
was sitting to consider the means of raising this sum, recom-
mended that a tax of one hundred thousand pounds be laid
upon the Jews, and a bill for that purpose was ordered
to be brought in. On November 11 the Jews presented a
petition to the House of Commons against the proposed
tax. The rule of the House then was that no petition
against a bill imposing a tax would be entertained, or if
presented entered upon the Journals of the House. This
rule, founded on the assumption that as a tax extended
over all parts of the kingdom, no individual should be
allowed to treat it as a special grievance to himself, was
not rescinded until 1842, when standing order 8a, discon-
tinuing the former usage and enabling the House to enter-
tain such petitions, was passed. Consequently the petition
and the debate upon it are not mentioned in the Commons
Journals. The petition gave a very interesting account
of the condition of the Jews in England at this time:
stating that about the year 1654 there came six Jew
families into this kingdom, which since the Restoration of
Charles II had been increased to the number of between
three and four score families, who had settled in the cities
of London and Westminster, under the public faith and
protection of King Charles II; that many of them had
been made denizens by the last two kings, and that though
VOL. XVII.
226 THE JEWISH QUARTERLY REVIEW
one half of them had moderate or indifferent estates, the
other half consisted partly of persons assisting the better
sort in the management of their commerce, and partly of
poor people maintained by their richer brethren, and in no
ways chargeable to the parish ; that they paid all the taxes
and fulfilled all the duties imposed upon them, and by
their large commercial transactions they greatly enriched
the nation, and increased the revenue from Customs : that
they were wholly unable to pay the large sum proposed to
be levied upon them, and could not expect any assistance
from their brethren abroad; so that if the tax were pro-
ceeded with they would be utterly ruined. Though not
mentioned in the petition, the rumour was spread abroad
that the Jews would be forced to leave the country, and
that they would remove themselves and their effects into
Holland, rather than submit to the imposition 1 . On Nov.
19 the petition was delivered by Mr. Paul Foley, member
for Hereford, and afterwards Speaker ; and a debate as to
whether it should be received ensued. It was questioned
whether the Jews were subjects of the king having the
right to petition Parliament, and stated that, if they were,
they had no more right than their fellow subjects, and
could not petition against an Aid. Sir Thomas Lee said :
"Pray let not such petitions be received. You will not
receive it from others, pray begin not with the Jews."
And though Mr. Foley answered these arguments by de-
claring " I think that for the honour of the House you are
to hear what they will say. When you lay a general tax
on a whole kingdom, you can receive no petition against
it, because all are represented here, but when there is a
particular tax on men they may petition." Mr. Speaker
Powle stated that he never knew a petition against a Bill
before the House was seised of it, and it was decided not
to receive the petition 2 . On Dec. 30 the Bill was read a first
1 See the Greenutich Hospital News-letter, 3, No. 77, Nov. is ; Gal. S. P. Dow.,
1689, p. 318 ; and Luttrell's Diary, vol. I, p. 303.
8 Cobbett's Pari. Hist., vol. V, p. 444, and Gray's Pari. Debates, vol. IX,
pp. 437-8.
THE JEWS AND THE ENGLISH LAW 227
time, and it was resolved that it should be read a second
time, but it went no farther, for men saw how dangerous
a precedent it would be to single out for special taxation
a small, defenceless, and wholly unrepresented class, which
was unable to bear the burden sought to be imposed upon
it. The projected tax was accordingly withdrawn K
Therefore the Jews did not become subject to a separate
system of taxation, as in our West Indian colonies. They
were, however, expected to bear the burdens of the country
in the same way as their neighbours, and about this very
time great disappointment was expressed that they were
not ready to advance or lend, on the security of the new
taxes, large sums of money for the purposes of the Govern-
ment, and the Lord Mayor was actually requested by the
Earl of Shrewsbury, then Secretary of State for the North,
to send for their elders and principal merchants, and to
impress upon them the great obligations they were under
to the king for the liberty and privileges they enjoyed,
and endeavour to induce them to raise the sum of £13,000,
which they had offered to provide, to £30,000, or at the
very least £20,000 2 . It is probable that the response to
this appeal did not come up to the expectations of the
Government, and that it was partly in consequence of this
that the exemption from certain of the alien duties, which
had been granted in the reign of James II, and continued
since the Revolution, was finally withdrawn by an Order
in Council made in the October of this year 3 .
On other occasions also the permanent settlement of the
Jews here was recognized by Parliament, and they are
more than once expressly mentioned in Acts of Parliament,
The first of these Acts is 6 & 7 Will, and Mar. cap. 6, entitled
"An act for granting to His Majesty certaine rates and
duties upon Marriages, Births, and Burials, and upon
1 See Macaulay's History, ch. xv ; Commons Journals, vol. X, pp. a8i, 319;
Calendar S. P. Dom., Dee. 31, 1689, p. 374 ; Greenwich Hospital News-Utter, 3,
No. 83.
2 S. P. Calendar, Feb. 10, 1690. 3 See Tovey*s Anglia Iudaica, pp. 287-95.
q a
228 THE JEWISH QUARTERLY REVIEW
Batehelors and Widowers, for the terme of 5 years, for
carrying on the War against France with Vigour." It
imposed a duty of two shillings and sixpence upon the
marriage of every person not in receipt of alms, and addi-
tional taxes in case of the marriage of persons of rank or
property, and contained a proviso that Quakers, Papists,
and Jews, and any other persons living together as man
and wife, should be liable to the duties they would have
been obliged to pay, if they had been married according
to the law of England, but at the same time the Act was
not to be construed as in any way making good or effectual
any such marriage.
Again a few years later, in the spring of 1698, when " the
Act for the more effectual suppressing of Blasphemy and
Profaneness" was before Parliament, and an amendment
was inserted after its return to the Lords, by which all
persons openly professing the Jewish religion would have
been made liable to the severe penalties it imposed; the
House of Commons recognized the right of the Jews to
remain here and continue the exercise of their religion by
rejecting the amendment by a substantial majority. This
incident is thus described by Narcissus Luttrell in his Diary,
under the date March 22, 169I : "The Commons yesterday
divided about a clause in the bill against prophanesse,
relating to the Jews, who deny Jesus Christ ; 144 were for
it, and 78 against it : so the clause was added that the Jews
shal not be molested V
The next occasion on which this subject was raised in
the legislature was in the year 1702, when the Act to oblige
the Jews to maintain and provide for their Protestant
children was passed. The way in which this statute was
put in operation has already been described in the second
of these articles, and calls for no further comment, but it
1 The Commons Journals give the numbers as 140 and 78. In reality no
clause was added, but the words which had been struck out by the Lords
■were restored to the Act. See the second of this series of articles, J. Q. R.,
vol. XIII, pp. 275-80.
THE JEWS AND THE ENGLISH LAW 229
may be advisable to recall the circumstances which led to
its enactment. A few years earlier the Commons had
rejected the Lords' amendment to the Act against Blas-
phemy and Profaneness, on the express ground that it would
drive the Jews out of the country, and so deprive them
of the means of being rightly instructed in the principles of
the true Christian religion. It soon became clear that this
desire of gaining proselytes would not be gratified to any
great extent if the converts were exposed to financial ruin,
nor, as there was not in those days a rich and highly
endowed society for the promotion of Christianity among
the Jews, were the conversionists prepared to support
a burden which they had reasonable hopes of removing to
other shoulders. In the year 1701 a case arose which gave
an opportunity for introducing legislation. In May of that
year Mary Mendez de Breta, a girl nearly eighteen years
of age, who had been brought up as a Jewess, embraced
the Christian faith, and was baptized by Mr. Thorold,
a minister of the Church of England. Thereupon her
father, Jacob Mendez de Breta, disowned her for his
child, turned her out of doors, and refused to allow her
any maintenance, and she, being afraid of her father's
anger, applied to the Lord Mayor for protection, and at
his order the churchwardens of St. Andrew's Under-
haft, in whose parish the father lived, provided for her
and maintained her at the charge of the parish. The
churchwardens lodged a complaint against the father at the
Quarter Sessions at the Guildhall, and an order was made
under the Relief of the Poor Act of Elizabeth that the
father should allow her twenty shillings a-month for her
maintenance, but this order was subsequently quashed by
the Court of King's Bench, on the ground that there was
no jurisdiction to make it \ A petition was then presented
1 See the Inhabitants of St. Andrew's Underhaft v. de Breta, Lord
Kaymond's Reports, vol. I, p. 699. Before the Committee of the House of
Commons it was stated that the allowance for maintenance was twenty
shillings a-week. Commons Journals, vol. XIII, p. 799.
230 THE JEWISH QUARTERLY REVIEW
to the House of Commons by the ministers, churchwardens,
and overseers of the poor of the above-mentioned parish
and the five neighbouring parishes, stating that most of the
Jews in London lived in their parishes, and that, " though
they enjoy the protection of the government and the free
exercise of their religion and grow rich, yet they bear such
a hatred to our national religion, that in case any of their
children embrace the same, they utterly disown them and
treat them with great cruelty ; an instance whereof appears
by the daughter of Jacob Mendez de Breta, a rich Jew
in St. Andrew's Underhaft, who being converted to the
Christian Faith, he utterly disowns her for his child and
refuses to maintain her; so that she is now kept by the
said parish for her encouragement, suitable to her educa-
tion," and praying that a bill might be brought in to oblige
Jacob Mendez de Breta in particular and the Jews in
general to maintain and provide for their Protestant
children, The petition was at once referred to a Committee.
The Committee heard a large number of witnesses on both
sides, including the father himself, who said that Mary was
not his daughter, but with two or three more children had
been laid at his door in Portugal, and that he had main-
tained them purely out of charity, and further that he had
never owned her as his daughter, but had always treated
her as a servant, and that if she was entered in the parish
books for the poll-tax as his daughter it was without his
knowledge or consent. The Committee, however, found
that the allegations in the petition were fully proved, and
recommended that a bill be brought in according to the
prayer of the petition. When the bill was read a second
time a petition from several Jews, merchants in London,
was presented against it, and after certain amendments had
been made in the Commons, it was passed in the Lords
without any amendment and almost without debate 1 .
On other occasions occurring at frequent intervals before
1 Commons Journals, vol. XIII, pp. 748, 798-800, 813, 839, 848, 886, 889,
895, and Lords Journals, vol. XVII, pp. 125, 126, 128, 131, 148.
THE JEWS AND THE ENGLISH LAW 23I
1 846 Parliament took cognizance of the presence of the Jews,
generally with the view of mitigating in their favour new
enactments which would have otherwise pressed heavily
upon them, but it will for our present purpose be sufficient
to enumerate briefly the principal of these occasions. For
instance, in the year 172a, in order to place a check upon
the Jacobites, many of whom were Roman Catholics, it was
enacted by 9 Geo. I, cap. 24, that all persons owning land,
who refused or neglected to take the oaths appointed for
the security of the king's person and government, which in-
cluded the oath of abjuration as framed in the reign of
James I, and ending with the words " on the true faith of
a Christian," should register their names and real estates
before a fixed day, or in default should forfeit their lands.
But, in the following year, an amending Act, 10 Geo. I, cap.
4, was passed, which allowed persons professing the Jewish
religion to take the oath without the final words, in like
manner as Jews are admitted to be sworn to give evidence
in Courts of Justice.
Again in the year 1 740 an Act was passed enabling all
persons who had settled for a period of seven years in any
of the British colonies in America to be naturalized, under
certain conditions, without the necessity of obtaining a
private Act of Parliament, by which naturalization was
granted in those days, but it contained a proviso that all
such persons should first receive the Sacrament of the
Lord's Supper in some Protestant and reformed congrega-
tion in Great Britain or one of the colonies, except the
people called Quakers, "or such who profess the Jewish
religion." It was also further provided that Jews taking
the necessary oaths for the purposes of this Act might
omit the words " on the true faith of a Christian," in the
same way as they were enabled to do under 9 Geo. I, cap.
24 K Thirteen years later Lord Hardwicke's Act for the
better preventing of clandestine marriages (26 Geo. II,
1 13 Geo. II, cap. 7, repealed by the Naturalization Act, 1870 ; see
especially sees, a and 3.
232 THE JEWISH QUARTERLY REVIEW
cap. 33), which made null and void all marriages solemnized
without the publication of banns or licence, expressly
excepted marriages amongst the people called Quakers or
amongst the persons professing the Jewish religion, and
most of the subsequent marriage Acts have contained
similar exceptions. In the same year was passed the famous
Jew bill (36 Geo. II, cap. 36), which permitted persons
professing the Jewish religion to be naturalized by Act of
Parliament without having previously taken the Sacra-
ment. The Act passed through the House of Lords with
great ease, but when it came down to the House of Com-
mons met with strong opposition; indeed it would have
possibly been wrecked in the Lower House, had not some
of the enemies of the Government slackened their efforts
against it, in the belief that it would cause widespread
unpopularity throughout the country against the party in
power. Nor was this belief ill-founded, for the storm of
prejudice and fanaticism that arose during the recess
compelled the Government to pass as their first effective
measure of the next session an Act repealing the obnoxious
Jew bill. For more than seventy years the Jews were not
specially mentioned in any Act of Parliament, but they
were again expressly excepted from the provisions of the
marriage Acts of 1834, 1836, and 1840, and the Registration
Act, 1836, provided for the due registration of Jewish
marriages by the Secretary of a synagogue certified by the
President of the London Committee of Deputies of the
British Jews.
This brings us down to the years 1845 an ^ 1846, when
the measures of relief were granted, and the Jewish reli-
gion finally admitted to the benefit of the Toleration Act.
Till then the immunity of the Jews from the consequences
of the penal laws had rested on the royal dispensations
granted by the king in Council in answer to the petitions
of Abraham Deli vera and others in 1674, and of Joseph
Henriques and others in 1685, and the preceding summary
of Parliamentary enactments concerning the Jews shows
THE JEWS AND THE ENGLISH LAW 233
that the legislature tacitly acquiesced in this particular
exercise of the dispensing power formerly claimed by the
Crown, nor was there any individual bold enough to chal-
lenge it by persisting in a prosecution in a court of law.
This fact is not without significance, when it is remembered
that the laws against recusants, though by no means uni-
formly enforced, had not become quite obsolete, even at the
time when they were finally repealed. The Criminal Law
Commissioners, in their first report published in 1845,
mention a considerable number of convictions, followed by
actual imprisonment of the offenders, which had recently
to their knowledge taken place in different parts of the
country 1 . Though never questioned in a court of law, the
immunity of the Jews did in truth rest upon sufficiently
sure foundations. It could not indeed be proved that any
charter or formal document of exemption had been exe-
cuted in their favour, but the fact of the dispensation was
sufficiently evidenced by the story of the proceedings taken
against them on two important occasions in two different
reigns.
There can be little doubt that in the reign of Charles II,
when the Jews re-established their community here, the king
still retained the power of dispensing with laws, though
subject to certain limits, which even in those times could
not be precisely defined, but which it was generally
acknowledged that James II had in the latter part of his
reign undoubtedly transgressed. Accordingly it was not
absolutely condemned by the Declaration of Rights, but it
was thought sufficient to declare that " the pretended power
of dispensing with laws or the execution of laws, by regall
authoritie, as it hath beene assumed and exercised of late, is
illegall." To prevent such abuse in the future, the Bill of
Rights absolutely abolished the power, except in such cases
1 See first report of Her Majesty's Commissioners for revising and
consolidating the criminal law, note on pp. 32-3, and also Lord Brougham's
remarks, Mans. Pari. Debat., vol. 59, p. 815 (1841), and id., vol. 85, p. 1264
(1846).
234 THE JEWISH QUARTERLY REVIEW
as should be specially provided for by statute, and con-
tained a special saving clause, providing no charter, grant,
or pardon granted before October 33, 1689, should be in
any way impeached or invalidated. Though the Jews
had no formal charter in their possession, they could claim
the final words of the Order, in Council of 1685 — "His
Majesty's intention being that they should not be troubled
upon this account, but quietly enjoy the free exercise of
their religion, whilst they behave themselves dutifully and
obediently to his government" — as a grant within the
meaning of the proviso '.
When the facts are properly analysed, it is difficult to
suggest any other foundation for the freedom of the Jews
to establish synagogues, and to absent themselves from
church, than the exercise of the dispensing power of the
Grown. From this an anomalous consequence of no small
practical importance resulted, namely, that there never was
any necessity to certify or register a synagogue in the
same way as places of religious worship belonging to
other Dissenting bodies. The benefit of the Toleration
Act of 1688 was confined to persons who attended divine
service at some place permitted by the Act, and no place for
religious worship was permitted by the Act until certified
to the Bishop, Archdeacon, or Quarter Sessions, and duly
registered or recorded, and the Roman Catholic Relief Act of
1 79 1 contained similar provisions for the certification and
registration of Roman Catholic places of worship. Further-
more, the second section of the Places of Religious Worship
Act, 1813, which is still in force, imposed a penalty of
twenty pounds upon every person permitting a congregation
or assembly for religious worship of Protestants, at which
more than twenty persons should be present, to meet in
any place occupied by him before it had been duly certified.
1 For the dispensing power see the cases of non-obstante, 12 Rep., fo. 18 :
Thomas v. Sorrel (1674), Vaughan, p. 330, and G-odden v. Hales (1686),
2 Shower, p. 475, and XI St. Tr., p. 1,166, with the notes, especially those
at pp. 1,187 and 1,251, and generally Broom's Constitutional Law, pp. 492-506 ;
Anson's Parliament, pp. 311-17 ; and Burnet's Reign of James II, pp. 458-60.
THE JEWS AND THE ENGLISH LAW 235
In the year 1855 the Act for securing the liberty of reli-
gious worship (18 & 19 Vict., cap. 86) considerably modified
this stringent provision, by excepting from its operation
assemblies for religious worship conducted by the incum-
bent of the parish, or a person authorized by him, and con-
gregations meeting in a private dwelling-house, or meeting
occasionally in a building not usually appropriated to reli-
gious worship. The second section of the same Act, by pro-
viding that the expression in the Act of 1846, Her Majesty's
subjects professing the Jewish religion, in respect of their
places for religious worship, shall be subject to the same
laws as Protestant Dissenters are subject to, shall mean
are subject to for the time being after the passing of this
Act, seems to imply that at that time it was necessary to
certify a Jewish synagogue. But it is certain that there
was no provision for certifying a synagogue before 1846,
and it is hardly consonant with the true principles of the
interpretation of statutes to extend the scope of a highly
penal section of an Act of Parliament in this indirect way,
especially by an enactment entitled " An Act to relieve Her
Majesty's subjects from certain penalties and disabilities
in regard to religious opinions," the manifest intention of
which was to grant relief from former burdens, but not to
impose any new obligations. However, by the Places of
Religious Worship Registration Act, 1855 (18 & 19 Vict.,
cap. 81), a Jewish synagogue may be certified in writing to
the Registrar-General of births, deaths, and marriages, and
will then be registered in due time. Although, as has been
said, this course is optional and not compulsory, it is to be
recommended, because it ensures the following advantages.
A building so certified is exempt from uninvited interfer-
ence by the Charity Commissioners, and is also, if exclu-
sively appropriated to public religious worship, not liable
to be rated for parochial or municipal purposes \ In
1 See 16 & 17 Vict., cap. 137, sec. 62 ; 18 & 19 Vict., cap. 81, sec. 9 ;
and 32 & 33 Vict., cap. no, sec. 15, as to the provisions of the Charitable
Trusts Act ; and as to the exemption from rates, 3 & 4 Will. IV, cap. 30 ;
5 & 6 Will. IV, cap. 50, sec. 27 ; and 38 & 39 Vict., cap. 55, sec. 151.
236 THE JEWISH QUARTERLY REVIEW
addition, a synagogue not certified is not entitled to any of
the advantages conferred by the legislature in 1846 : a gift
or legacy to it is void, nor can contracts to hire seats in it
be enforced, or disturbers of the service be punished.
With the mention of this somewhat curious anomaly, the
consequence of this method in which full legal recognition
has been given to the Jewish religion, it is time to bring
the foregoing inquiry to a close; nor is it necessary to
recapitulate at any length the conclusions already arrived
at. In the year 1290 the Jews were banished from the
kingdom by royal edict, but this edict, now lost, would not
avail to absolutely exclude from the country centuries
afterwards Jews in no way connected with the former
bondsmen of the king. From time to time isolated Jews
came and lived in England, but the severity of the laws
enforcing uniformity of religion was sufficient to prevent
the formation of a Jewish community, and as late as the
reign of James I the Jews that were here fled the country
through fear of the commissioners appointed to execute the
laws against Jesuits. The treaty with Spain in 1630 made
it somewhat easier for Jews to settle here, by allowing them
to evade some of the penalties imposed on recusants, but
this advantage, such as it was, was lost by the outbreak of
the war with Spain in 1656, though restored after the
return of Charles II. Availing themselves of this ad-
vantage a small number of Jews settled in the country in
the reign of Charles I, and at the time of the execution of
that king a formal request was made for the recognition
of the Jewish religion, but it was not successful, and being
renewed seven years later, in spite of the fair words used
and the courtesy shown to Menasseh, it again proved a
failure. During Cromwell's regime nothing was done;
but there is evidence that the Protector allowed some half-
dozen families of persons he knew to be Jews to remain in
the realm, but this' was a special favour which did not
enable them to form a distinct body or set up a synagogue.
During his exile Charles II made a formal promise to
THE JEWS AND THE ENGLISH LAW 237
relax the law in their favour ; but no legislation was intro-
duced, nor, if introduced, would it have had a chance of
success. But the promise was fulfilled. A considerable num-
ber of Jews received the rights of citizenship; a distinct
Jewish community arose, and a synagogue was established.
At first the services were kept strictly secret, for fear of the
enforcement of the penal laws, but, under the protection of
the king's dispensing power, before the end of 1663 it was
possible to hold them with open doors, and the attacks made
upon the Jews were successfully repelled. On the acces-
sion of King James II a further and last attempt was made
to visit with the rigour of the law the still young and
struggling community, which was again saved by the exer-
cise of the dispensing power of the Crown. After the
Revolution the power of dispensation was swept away, but
it was expressly provided that charters or grants already
made should not be held invalid, and the formal Order in
Council of November 13, 1685, granting the Jews the free
exercise of their religion, was thus confirmed. At length,
in 1846, after an interval of more than a century and a
half, the Jewish religion, the profession of which had been
frequently recognized by the legislature, was formally made
legal by Act of Parliament.
H. S, Q. Henriques.